CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 28 février 1996

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                         Application No. 23003/93                       by Erik Theodorus HUMMELS                       against the Netherlands         The European Commission of Human Rights (Second Chamber) sitting in private on 28 February 1996, the following members being present:              Mr.    H. DANELIUS, President            Mrs.   G.H. THUNE            MM.    G. JÖRUNDSSON                  J.-C. SOYER                  H.G. SCHERMERS                  F. MARTINEZ                  L. LOUCAIDES                  J.-C. GEUS                  M.A. NOWICKI                  I. CABRAL BARRETO                  J. MUCHA                  D. SVÁBY                  P. LORENZEN              Ms.    M.-T. SCHOEPFER, Secretary to the Chamber         Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 2 November 1993 by Erik Theodorus HUMMELS against the Netherlands and registered on 24 November 1993 under file No. 23003/93;         Having regard to:   -      the reports provided for in Rule 47 of the Rules of Procedure of       the Commission;   -      the observations submitted by the respondent Government on       28 March 1995 and the observations in reply submitted by the       applicant on 28 April 1995;         Having deliberated;         Decides as follows:   THE FACTS         The applicant is a Dutch citizen, born in 1949, and resides at Utrecht, the Netherlands. He is a practising lawyer by profession.         The facts of the case, as submitted by the parties, may be summarised as follows.   a.     Particular circumstances of the present case         On 8 April 1992, the Legal Aid Office (Buro voor Rechtshulp) at the Hague appointed the applicant public defence counsel in cassation proceedings before the Supreme Court (Hoge Raad) in the case of K., who had filed an appeal in cassation against his criminal conviction by the Court of Appeal (Gerechtshof) of 's-Hertogenbosch. The applicant had not represented K. in the earlier stages of the criminal proceedings against K. The Supreme Court decided K.'s appeal in cassation on 25 May 1993.         By letter of 9 June 1993, the applicant submitted the declaration of his fees in K.'s case to the Registrar (griffier) of the Supreme Court. Insofar as relevant, this letter reads:   <Translation>         "     I herewith send you my declaration in the case cited       above. (...).              I herewith send you as annexes the specifications of       the activities. In my opinion it concerns here an extremely       laborious case. In total, 48 hours and 9 minutes were spent       on it, of which 18 hours travelling time. (...).              I request you to apply Section 33 of the Order on Fees       for Legal Aid in Criminal Cases."         On 12 October 1993, the Registrar of the Supreme Court decided to grant the applicant a total fee of 2.900,32 Dutch guilders. This amount consisted of the standard fee, a travelling allowance, a mileage allowance and value-added tax. The Registrar had not applied Section 33 of the Order on Fees for Legal Aid in Criminal Cases (Besluit vergoedingen rechtsbijstand in strafzaken, hereinafter referred to as "the Order"), as only the standard fee had been granted.         The Registrar's decision was accompanied by an intervention decision (tussenkomstbeslissing) within the meaning of Section 29 of the Order dated 22 June 1993 of Supreme Court judge B., who found no reason to grant a higher allowance than the standard fee and consequently rejected the applicant's request to apply Section 33 of the Order.         By letter of 15 October 1993, the applicant requested the President of the Supreme Court to intervene in the matter pursuant to Section 29 of the Order. He also corrected his initial declaration, in that the 18 hours travelling time were not included in the 48 hours and 9 minutes spent on the case, but should be added to the 48 hours and 9 minutes.         This letter, insofar as relevant, reads:   <Translation>         "     [In his determination of the fees of 12 October 1993]       the Registrar does not at all deal with the request to       apply Section 33 of the Order on Fees for Legal Aid in       Criminal Cases. However, a decision of judge B. dated       22 June 1993 was enclosed (...). Judge B.'s decision rests,       I suppose, on an apparent mistake. The Registrar must       determine a request to apply Section 33 and not you nor a       judge appointed by you. Only when the counsel involved       cannot agree with the Registrar's determination, is it for       the counsel to decide whether or not to request       intervention within the meaning of Section 29 of the Order       on Fees for Legal Aid in Criminal Cases.       (...).              I explicitly request you to hear me before deciding       this [intervention] request on the basis of Section 29 of       the Order on Fees for Legal Aid in Criminal Cases.              With respect to the present intervention I also       request you to apply a procedure which is completely in       accordance with the rules and principles laid down in       Article 6 of the Convention. Thus, I would like to have at       my disposal a written report about everything that the       Registrar and judge B. have discussed with reference to my       letter of 9 June 1993. I would also like to receive copies       of the Registrar's recommendations with respect to the said       letter of 9 June 1993 and with reference to this present       letter. Insofar as these recommendations were given orally,       I request you to make a report of them and to give me the       opportunity to react to them before you reach a decision.       (...)."         In his letter of 26 October 1993, the acting President of the Supreme Court, Judge H., rejected the applicant's request, holding:   <Translation>         "     Judge B. has apparently and not incomprehensibly read       in your letter of 9 June 1993 that you requested his       intervention in case the Registrar did not grant your       request to apply Section 33 of the Order on Fees for Legal       Aid in Criminal Cases.              Since on this basis he has given a decision pursuant       to Section 29 of said Order, there is no room for a new       decision."   b. Relevant domestic law         Pursuant to Section 27 of the Order, the Registrar to the Court which has dealt with the case, determines (vaststellen) the amount of the fee that will be paid to the lawyer who has acted as public defence counsel in that case.         Section 33 of the Order reads as follows:   <Translation>         "If the fee to be determined in accordance with this Order       for legal aid provided in cases referred to in Chapter II       or in Section 22 is apparently disproportionate to the work       spent on it, with a minimum of 35 hours, the Registrar may       determine the fee, upon the request of the lawyer       concerned, for each 5 hours spent on the case at 40 per       hundred of the standard fee."         Section 29 of the Order provides as follows:   <Translation>         "Against the Registrar's decision concerning the       determination of the fees within the meaning of this Order,       the lawyer involved may, within thirty days after the       determination of the fee, request the intervention of the       President of the court whose Registrar determined the fee       (...)."         According to Section 31 of the Order no appeal lies against the President's decision on the request for intervention.         On 1 January 1994 the new Legal Aid Act (Wet op de Rechtsbijstand) entered into force, replacing the former Legal Aid Act (Wet Rechtsbijstand aan Min- en Onvermogenden). In the new rules on legal aid the intervention procedure has disappeared. Against decisions taken under the new Legal Aid Act the administrative appeal procedure provided for in the General Administrative Law Act (Algemene Wet Bestuursrecht) can be applied to legal aid disputes.   COMPLAINT         The applicant complains that the intervention proceedings were not in conformity with the requirements of Article 6 para. 1 of the Convention. He submits that in these proceedings there was no oral and public hearing, that the proceedings were not adversarial, and that the principle of equality of arms was not respected.   PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 2 November 1993 and registered on 24 November 1993.         On 11 January 1995 the Commission decided to communicate the application to the respondent Government, pursuant to Rule 48 para. 2 (b) of the Rules of Procedure.         The Government's written observations were submitted on 28 March 1995. The applicant replied on 28 April 1995.   THE LAW         The applicant complains that the intervention proceedings were not in conformity with the requirements of Article 6 para. 1 (Art. 6-1) of the Convention.         Article 6 para. 1 (Art. 6-1) of the Convention, insofar as relevant, reads as follows:         "In the determination of his civil rights and obligations (...),       everyone is entitled to a fair and public hearing (...) by a       (...) tribunal (...)."         The Government submit that Article 6 para. 1 (Art. 6-1) of the Convention is not applicable to the proceedings at issue. According to the Government Section 33 of the Order merely authorises the Registrar to determine a higher rate of payment, but legal aid lawyers have no right to the application of Section 33 and, hence, a higher fee.         The Government further submit that, assuming that the proceedings at issue would fall within the scope of Article 6 para. 1 (Art. 6-1) of the Convention, they were in conformity with the requirements of this provision. According to the Government the applicant's initial request included a reasoned request for the application of Section 33 of the Order. Therefore, when the Supreme Court took its decision on 22 June 1993, the Supreme Court case-file contained all relevant information and the applicant's request of 15 October 1993 did not contain any supplementary information of possible relevance to the decision-making.         The applicant refutes the Government's argument that the proceedings at issue fall outside the scope of Article 6 para. 1 (Art. 6-1) of the Convention. He submits that the Registrar must give reasons for decisions on requests for a higher fee for legal aid in extremely complicated cases. If such a request is rejected, the lawyer concerned may seek the intervention of the judge.         He submits that in practice the remedy of appeal by intervention is purely illusory. A request for a higher legal aid fee is apparently not decided by the Registrar but directly by the "intervening" judge acting in advance without conducting any proper examination.         After an examination of the complaint in the light of the parties' submissions, the Commission considers that it raises complex issues of fact and law requiring an examination of the merits.         The application cannot, therefore, be declared manifestly ill- founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other grounds for inadmissibility have been established.         For these reasons, the Commission, by a majority,         DECLARES THE APPLICATION ADMISSIBLE, without prejudging the       merits of the case.   Secretary to the Second Chamber       President of the Second Chamber         (M.-T. SCHOEPFER)                       (H. DANELIUS)